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Thompson v. Resurgent Capital Services, L.P.

United States District Court, N.D. Alabama, Southern Division

March 31, 2015



JOHN E. OTT, Magistrate Judge.

This case arises under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA" or "Act") and Alabama state law. Filed by Plaintiff Frances McIntyre Thompson ("Thompson" or "Plaintiff"), through counsel, the action comes to be heard before the undersigned after the parties consented to magistrate judge jurisdiction, see 28 U.S.C. § 636(c), FED. R. CIV. P. 73(a), on two motions filed jointly by the defendants, Resurgent Capital Services, L.P. ("Resurgent") and PYOD, L.L.C. ("PYOD") (collectively "Defendants"). The first motion seeks summary judgment on all claims. (Doc.[1] 39). The second is an associated motion to strike, directed at certain FDCPA claims or theories argued within Plaintiff's response in opposition to summary judgment. (Doc. 44). Upon consideration, the court finds that both of Defendants' motions be granted in part and denied in part.


Pursuant to Rule 56 of the FEDERAL RULES OF CIVIL PROCEDURE, a party is authorized to move for summary judgment on all or part of a claim asserted against the movant. Under that rule, the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. PROC. 56(a). The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, " relying on submissions "which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Once the moving party has met its burden, the nonmoving party must "go beyond the pleadings" and show that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324. Both the party "asserting that a fact cannot be, " and a party asserting that a fact is genuinely disputed, must support their assertions by "citing to particular parts of materials in the record, " or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. PROC. 56(c)(1)(A), (B). In its review of the evidence, a court view the evidence in the light most favorable to the non-movant. Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000). At summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).


According to the complaint, Plaintiff incurred a consumer debt that went into default in 1998 or 1999. (Doc. 1 ("Complaint" or "Compl.") ¶¶ 9, 12). Plaintiff asserts that Defendants Resurgent and PYOD are both debt collectors who are part of a related set of companies and that they operated as agents for each other at all times relevant. (Compl. ¶¶ 4-8, 60). She further claims that Defendants are "targeting consumers... in an attempt to illegally force them into paying debts that are either not owed or are well beyond the statute of limitations." (Id. ¶ 13). Plaintiff says she was so targeted when she "started receiving calls and letters from the Defendants or from collection agencies for the Defendants" ( id. ¶ 11), and that, "on or about March 19, 2012, " an agent or employee of Resurgent, called Plaintiff about the debt in question, associated with a First USA MasterCard account. (Id. ¶ 14). Plaintiff says, she advised Defendants that the debt had been "charged off" in 1998 or 1999 and "that she had been contacted by a number of companies over the years about this debt and that she had written letters before about [it]." (Id. ¶¶ 15, 18). Plaintiff asserts that, although Defendants admitted the statute of limitations on the debt had run in 2004, Defendants "were not concerned about her letters" and told her that she "still had to pay this debt" and "threatened to put this debt on [her] credit report if she did not pay." (Compl. ¶¶ 16, 17, 19, 20). Plaintiff claims, however, that she "does not owe any money to Defendants" ( id. ¶ 10) and that they were aware not only that the limitations period had expired but also and that the last date to legally credit report the debt was in 2005 or 2006. (Id. ¶¶ 16, 22-23). Plaintiff claimed that Defendants knowingly violated the FDCPA when they threatened to put the stale debt on her credit report in 2012 and that Defendants made such threat to "harass, annoy, abuse, or oppress Plaintiff, so that [she] pays the debt." (Id. ¶¶ 24-26). Plaintiff also asserts that "Defendants have refused to give all required disclosures under the FDCPA when communicating with [her]." (Id. ¶ 59).

Based on these allegations, Plaintiff claims that "all of the above described collection communications" violated a host of enumerated statutory sections of the FDCPA for which both Defendants are liable, "including, but not limited to the following: [15 U.S.C. §§] 1692d, 1692e, 1692e(2), 1692e(5), 1692e(8), 1692e(10), 1692e(11), 1692f, and 1692f(1), " (Compl. ¶¶ 61, 62, 77; id., Count I). She further claims that, based on their "repeated attempts to collect this debt from Plaintiff and refusal to stop violating the law, " Defendants are liable under Alabama law for invasion of privacy. (Compl. ¶ 66; id., Count II). Finally, Plaintiff asserts that Defendants engaged in "negligent, wanton, and/or intentional [mis]conduct, " both as it relates to hiring, training, and supervising employees ( id., Count III) and in attempting to collecting the debt itself. ( Id., Count IV).

Following discovery, Defendants have moved for summary judgment on all counts. (Doc. 39). That motion has been fully briefed (Docs. 39, 40, 41, 45), and the parties have filed evidence in support of their respective positions. (Docs. 39-1 through 39-5; Doc. 42). In addition, Defendants have filed a motion to strike that is directed at certain allegations and arguments in Plaintiff's response in opposition to summary judgment, which Defendants characterize as an improper attempt by Plaintiff to raise new, unpled claims under the FDCPA. (Doc. 44). Plaintiff has opposed that motion. (Doc. 46).


A. FDCPA Claims

"The FDCPA is a consumer protection statute that prohibits certain abusive, deceptive, and unfair debt collection practices." Marx v. General Revenue Corp., ___ U.S. ___, ___ n.1, 133 S.Ct. 1166, n.1 (2013) (citing 15 U.S.C. § 1692).

The Act regulates interactions between consumer debtors and "debt collector[s], " defined to include any person who "regularly collects... debts owed or due or asserted to be owed or due another." §§ 1692a(5), (6). Among other things, the Act prohibits debt collectors from making false representations as to a debt's character, amount, or legal status, § 1692e(2)(A); communicating with consumers at an "unusual time or place" likely to be inconvenient to the consumer, § 1692c(a)(1); or using obscene or profane language or violence or the threat thereof, §§ 1692d(1), (2). See generally §§ 1692b-1692j; Heintz v. Jenkins, 514 U.S. 291, 292-293 (1995).

Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 576 (2010).

The FDCPA prohibits debt collectors from making statements and engaging in conduct that is "deceptive, " "misleading, " "unconscionable, " or "unfair, " 15 U.S.C. §§ 1692e, 1692f, as viewed from the perspective of the "least sophisticated consumer." Crawford v. LVNV Funding, LLC, 758 F.3d 1254, 1258 (11th Cir. 2014) (citing LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1193-94, 1200-01 (11th Cir. 2010)). The "basic purpose of the least-sophisticated consumer' standard is to ensure that the FDCPA protects all consumers, the gullible as well as the shrewd." LeBlanc, 601 F.3d at 1194 (quoting Clomon v. Jackson, 988 F.2d 1314, 1318 (2nd Cir. 1993)). The Eleventh Circuit has explained the contours of that liberal standard thus:

That law was not made for the protection of experts, but for the public-that vast multitude which includes the ignorant, the unthinking, and the credulous and [t]he fact that a false statement may be obviously false to those who are trained and experienced does not change its character, nor take away its power to deceive others less experienced. There is no duty resting upon a citizen to suspect the honesty of those with whom he transacts business. Laws are made to protect the trusting as well as the suspicious.
* * *
[However], [t]he least sophisticated consumer can be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care. However, the test has an objective component in that [w]hile protecting naive consumers, the standard also prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness.

LeBlanc, 601 F.3d at 1194 (quotation marks and citations omitted).

"To enforce the FDCPA's prohibitions, Congress equipped consumer debtors with a private right of action, rendering "debt collectors who violate the Act liable for actual damages, statutory damages up to $1, 000, and reasonable attorney's fees and costs." Crawford, 758 F.3d at 1257 (quoting Owen, 629 F.3d at 1270 (citing 15 U.S.C. § 1692k(a))). "In order to prevail on an FDCPA claim, a plaintiff must prove that: (1) the plaintiff has been the object of collection activity arising from consumer debt, (2) the defendant is a debt collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA.'" Graveling v. BankUnited, NA, 970 F.Supp.2d 1243, 1255 (N.D. Ala. 2013) (quoting Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1360-61 (S.D. Fla. 2000) (quoting, in turn, Sibley v. Firstcollect, Inc., 913 F.Supp. 469, 470 (M.D. La. 1995))).

1. FDCPA Claims that Defendants Admit are Pled

As further discussed, the parties are at odds over just what FDCPA claims and theories Plaintiff has pled in the Complaint. However, Defendants acknowledge that Plaintiff has properly pled two particular discrete theories of FDCPA liability, both of which arise out of the collection call Plaintiff received on March 19, 2012. First, Defendants concede that Plaintiff has raised a claim alleging that the agent on that call made an explicit threat to report the debt in question to a credit bureau for the purpose of having the account appear on Plaintiff's credit report. And second, Defendants admit that Plaintiff has raised what is often called a "mini- Miranda " claim, based on an allegation that the call failed to include a required disclosure that the "debt collector is attempting to collect a debt and that any information obtained will be used for that purpose." 15 U.S.C. § 1692e(11); see Leahey v. Franklin Collection Service, Inc., 756 F.Supp.2d 1322, 1325 (N.D. Ala. 2010); see also generally Miranda v. Arizona, 384 U.S. 436 (1966). Given that it is undisputed that these two claims are properly in the litigation at this point, the undersigned will address them first.

a. Threat to Credit Report the Debt on the Call

Plaintiff has claimed that, during the call on March 19, 2012, an agent employed by Resurgent seeking to collect on a First USA Master Card debt, explicitly threatened that, if Plaintiff failed to pay, the debt would be reported to a credit agency. Defendants concede that if, in fact, the agent made such a threat, it would be a violation of the FDCPA (Doc. 40 at 15), because the debt could no longer be lawfully reported by a credit agency under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. See 15 U.S.C. § 1681c(a)(4); Gonzales v. Arrow Fin. Services, LLC, 660 F.3d 1055, 1062-63 (9th Cir. 2011); Slick v. Portfolio Recovery Associates, LLC, 2014 WL 4100416, at *5-7 (N.D. Ill. Aug. 20, 2014).

At her deposition in September 2013, Plaintiff testified that she answered the phone call; said, "hello"; and began speaking immediately with a customer service agent who told her he was calling about the First USA MasterCard debt. (Pl. Dep. at 113-14, 119-20). And on that call, Plaintiff insists, the agent threatened to credit report the debt if she did not pay. (Id. at 113-14). Plaintiff "guess[ed]" that her conversation with the agent lasted "around five minutes, " while acknowledging "it could have been shorter." (Id. at 114). After she hung up, she immediately called the office of her attorney and spoke with a representative there. (Id. at 129-30). Following that discussion, she says, she went wrote down what she remembered to have been said on the collection call, including that the agent had threatened to credit report the account, as follows:

Call came in from Capital Investments, a debt collection agency. The subject was a debt was for a bill from the year of [19]98. He wanted to know what kind of arrangements I wanted to make to [settlement? (sic)] this debt. I wanted to know what debt. He said a bill from USA from 1999. I said this bill was charged [o]ff... in that same year. I said was charged off because I became disable[d]. He said the statute of limitation was up in the year of 2004 but the bill was still mine and they had a right to recover. I informed him that they were about the 4th company to contact me. I asked him did they receive a letter from me. He said he did but I need [to] make arrangements about this bill. He said if this bill was not paid it would be turned over and reported on my credit record. I informed him not to call me any more if he wanted to contact me write me [crossed out] and again. Do not call me again. He said do you have a lawyer[?] I said yes. So when you want [to] contact me, everything would be turned over to my lawyer. He said I was still liable for this debt. I said again do not call me again. Frances Thompson

(Doc. 42-12 (emphasis added)).

The parties dispute, however, whether, the court must now assume for purposes of summary judgment the truth of Plaintiff's testimony that the agent threatened to credit report the debt. In most cases, of course, the court would have to do so. The Eleventh Circuit has explained:

When considering a motion for summary judgment, ... "courts must construe the facts and draw all inferences in the light most favorable to the nonmoving party and when conflicts arise between the facts evidenced by the parties, [they must] credit the nonmoving party's version." Davis [ v. Williams, 451 F.3d 759, 763 (11th Cir. 2006)] (quotation marks and emphasis omitted). Even if a district court "believes that the evidence presented by one side is of doubtful veracity, it is not proper to grant summary judgment on the basis of credibility choices." Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir. 2006). This is because credibility determinations and the weighing of evidence "are jury functions, not those of a judge." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013). While acknowledging this general rule, Defendants maintain that it does not apply here. Defendants contend that is so because there exists an audio recording of the telephone conversation between Plaintiff and the collection agent. And that recording, Defendants say, contradicts Plaintiff's account of what occurred on the call such that her testimony is due to be rejected as a matter of law.

"When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007); see also Feliciano, 707 F.3d at 1253 (indicating that a plaintiff's testimony may be discounted on summary judgment where "it is blatantly contradicted by the record, blatantly inconsistent, or incredible as a matter of law, meaning that it relates to facts that could not have possibly been observed or events that are contrary to the laws of nature."); cf. Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985) ("Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.").

In Scott, for example, the Supreme Court held that it was appropriate to reject certain testimony offered by the plaintiff in support of his § 1983 claim alleging excessive force, where his version of events was "utterly discredited" by the depiction on a police videotape. 550 U.S. at 380-81; see also Myers v. Bowman, 713 F.3d 1319, 1328 (11th Cir. 2013); Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 1290 n. 3 (11th Cir. 2009). The same principle also applies where an audio recording unambiguously contradicts a witness's testimony regarding the substance of a conversation or given verbal statements. See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991) (recognizing in a defamation action that, at summary judgment, the Court had to assume the truth of the plaintiff's testimony denying that he made certain statements attributed to him by the defendant, "except where otherwise evidenced by... tape recordings" of the interviews in which all relevant statements would have been made); Coble v. City of White House, 634 F.3d 865, 868-69 (6th Cir. 2011); Marcavage v. City of New York, 689 F.3d 98, 110 (2d Cir. 2012); see also United States v. Alston, 895 F.2d 1362, 1368 n.6 (11th Cir. 1990); Nash v. Estelle, 597 F.2d 513, 519 (5th Cir. 1979)[2] (en banc); NLRB v. Tex-Tan, Inc., 318 F.2d 472, 484 (5th Cir. 1963) ("[T]here could hardly be better proof of words spoken than an electronic tape recording properly identified and authenticated.").

The undersigned has listed to the audio recording of the March 19, 2012, telephone conversation between the collection agent and Plaintiff, which on a compact disc included in the record as Exhibit 3 to Defendants' Motion for Summary Judgment. Also, during the deposition of Resurgent's FED. R. CIV. P. 30(b) corporate representative, Tonya Henderson, the recording was played and transcribed. (Doc. 39-2 ("Henderson Dep.") at 137-42). The conversation is set out in its entirety below, as heard by the undersigned on the audio recording, which reflects some minute variations from the deposition:

[Automated female recorded voice] SPEAKER: Failed authentication. Account number XXXXXXXXX. Press one to connect. SoundBite failed authentication.
COLLECTOR: Thank you for holding for customer service. This is Aaron. We are calling today to help you resolve your dispute. Who am I speaking with?
THOMPSON: Frances McIntyre.
COLLECTOR: And the last four digits of your Social.
THOMPSON: I don't know whether, oh, 1079.
COLLECTOR: Pardon me? Okay. 1079? Ma'am?
COLLECTOR: Okay. You said 1079, correct?
COLLECTOR: Okay. And a current mailing address?
THOMPSON: Uh, what is this all about?
COLLECTOR: Okay. All right. This is about a, let's see here, a ...

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